Citation Nr: 0108980
Decision Date: 03/27/01 Archive Date: 04/03/01
DOCKET NO. 99-16 469 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUES
1. Entitlement to service connection for a bilateral knee
condition.
2. Entitlement to service connection for pes planus.
3. Entitlement to an increased (compensable) original rating
for temporomandibular joint syndrome.
REPRESENTATION
Appellant represented by: Georgia Department of Veterans
Service
ATTORNEY FOR THE BOARD
H. Roberts, Counsel
INTRODUCTION
The veteran served on active duty from June 1994 to June
1998.
This appeal arises before the Board of Veterans' Appeals
(Board) from an August 1998 rating decision of the Atlanta,
Georgia, Regional Office (RO) of the Department of Veterans
Affairs (VA), which denied the issues on appeal.
The veteran's claims of entitlement to service connection for
a bilateral knee condition and pes planus are addressed in
the remand attached to this decision.
FINDINGS OF FACT
The evidence shows that the veteran's temporomandibular joint
is limited in lateral excursion to 4 millimeters, while she
has a normal vertical (inter-incisal) opening of 50
millimeters.
CONCLUSION OF LAW
The criteria for entitlement to an increased original rating
of 10 percent, but not higher, for temporomandibular joint
syndrome are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991);
38 C.F.R. § 4.150, Diagnostic Code 9905 (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran contends that her temporomandibular joint
syndrome is more severe than currently evaluated and that an
increased rating is warranted. After a review of the record,
the Board finds that the veteran's contentions are supported
by the evidence, and an increased original rating of 10
percent, but not greater, is granted for temporomandibular
joint syndrome.
The veteran established service connection for
temporomandibular joint syndrome by means of an August 1998
rating decision, which is the subject of this appeal.
The severity of a disability is ascertained, for VA rating
purposes, by application of the criteria set forth in VA's
Schedule for Rating Disabilities, 38 C.F.R. Part 4 (2000)
(Schedule). Temporomandibular joints syndrome is evaluated
pursuant to the criteria found in Diagnostic Code 9905 of the
Schedule. 38 C.F.R. § 4.150 (2000). Under those criteria, a
rating of 10 percent is warranted where the evidence shows
limitation of motion of the temporomandibular articulation of
0 millimeters to 4 millimeters of lateral excursion or
limitation to 31 millimeters to 40 millimeters of inter-
incisal range. A rating of 20 percent is warranted where the
evidence shows limitation of motion of the temporomandibular
articulation to 21 millimeters to 30 millimeters of inter-
incisal range. 38 C.F.R. § 4.150 (2000).
The evidence of record includes a January 1999 VA examination
which shows that the veteran's temporomandibular articulation
has a normal vertical opening (inter-incisal) of 50
millimeters and left and right lateral movement of 4
millimeters. Auscultation of the left and right
temporomandibular joints revealed clicking and crepitation.
There was no radiographic evidence of significant bone loss.
X-rays showed regressive remodeling (beaking) of the left
condylar and right heads, remodeling of the glenoid fossae
(cuffed out appearance) and articular eminence (thickening),
and loss of posterior joint space. The examiner stated that
the veteran exhibited clinical signs and symptoms consistent
with temporomandibular joint dysfunction and myofascial pain
and dysfunction. The examiner offered a later addendum which
stated that there was clinical and radiographic evidence of
impairment of temporomandibular joint structures and there
were clinical signs of dysfunction and pain. The examiner
stated that the veteran's masticatory function was not found
to be impaired.
The Board finds that the veteran's range of motion is not
compensable for her inter-incisal range of motion, which is
shown to be normal. Limitation of inter-incisal motion to 40
millimeters would be required to warrant a compensable
rating. However, her range of lateral excursion is limited
to 4 millimeters which warrants a 10 percent rating.
The Board is required to consider the effect of pain and
weakness when rating a service connected disability. 38
C.F.R. §§ 4.40, 4.45 (2000); DeLuca v. Brown, 8 Vet. App. 202
(1995). However, in Sanchez-Benitez v. West, the Board
stated in the evaluation of a veteran's disability that the
"nature of the original injury has been reviewed and the
functional impairment that can be attributed to pain or
weakness has been taken into account. 38 C.F.R. §§ 4.40,
4.45." The Court held that "this discussion by the Board,
with direct citation to sections 4.40 and 4.45, satisfies any
obligation of the BVA to consider these regulations while
rating the appellant's" disability. Sanchez-Benitez v.
West, 13 Vet. App. 282 (1999). Therefore the Board states
that in the instant case that the nature of the original
injury has been reviewed and the functional impairment that
can be attributed to pain or weakness has been taken into
account. 38 C.F.R. §§ 4.40, 4.45 (2000).
The Board has considered the veteran's complaints of pain, as
well as all evidence of record related to limitation of
motion, excess motion, incoordination, fatigability, and pain
on motion, in determining that the preponderance of the
evidence is against the veteran's claim of entitlement to a
rating greater than 10 percent for the veteran's
temporomandibular joint syndrome.
Accordingly, the Board finds that the criteria for
entitlement to an increased original rating of 10 percent,
but not higher, for temporomandibular joint syndrome are met
and the veteran's claim therefor is granted. 38 U.S.C.A.
§§ 1155, 5107 (West 1991); 38 C.F.R. § 4.150, Diagnostic Code
9905 (2000).
ORDER
Entitlement to an increased rating of 10 percent, but not
greater, for temporomandibular joint syndrome is granted,
subject to the laws and regulations governing the
disbursement of monetary benefits.
REMAND
VA has a duty to assist claimants in the development of facts
pertinent to claims and VA must accomplish additional
development of the evidence if the record currently before it
is inadequate. Veterans Claims Assistance Act of 2000, Pub.
L. No. 106-475, § 4, 114 Stat. 2096, ___ (2000) (to be
codified as amended at 38 U.S.C. § 5107).
The evidence of record shows that the veteran is diagnosed
with knee strain. The evidence also shows that the veteran's
feet were not examined at the time of her January 1999 VA
examination.
The Board feels that a VA examination would be useful in
determining whether any current knee disability may be
related to the veteran's service. The Board further feels
that an examination of the veteran's feet is needed to
determine whether pes planus was aggravated in the veteran's
service.
Accordingly, this case is REMANDED for the following:
1. The RO should schedule the veteran
for VA joints and feet examinations. The
claims folder and a copy of this remand
should be made available to and be
reviewed by the examiners in conjunction
with the examination. Specifically the
examiners should provide the following
information:
a) The examiners should perform a
thorough review of the veteran's
claims file and medical history and
should state in the examination
reports that such review has been
conducted.
b) The joints examiner should
provide a diagnosis for any knee
disability present. The examiner
should provide an opinion as to
whether it is as likely as not that
any knee disability found is related
to the veteran's service or to her
treatment in service for
patellofemoral syndrome. In
providing an opinion as to the
likelihood of relationship, it is
most useful to the Board if the
examiner classifies the likelihood
of relationship as "definitely,"
"more likely than not," "as
likely as not," "more likely
not," or "definitely not."
c) The feet examiner should review
the evidence and provide an opinion
as to whether or not the veteran's
pes planus (shown on entry to
service) increased in severity
during her service.
2. The RO should review the claims
folder and ensure that all of the
development action has been conducted and
completed in full. Specific attention is
directed to the examination report. If
the requested examination does not
include adequate responses to the
specific opinions requested, the report
must be returned for corrective action.
38 C.F.R. § 4.2 (2000) (if the
examination report does not contain
sufficient detail, it is incumbent upon
the rating board to return the report as
inadequate for evaluation purposes).
Green v. Derwinski, 1 Vet. App. 121, 124
(1991); Abernathy v. Principi, 3 Vet.
App. 461, 464 (1992); Ardison v. Brown, 6
Vet. App. 405, 407 (1994).
3. Following completion of the
foregoing, the RO should review the
issues on appeal and comply with all
applicable notice requirements. If the
decision remains adverse to the veteran,
she and her representative should be
furnished a supplemental statement of the
case and afforded the applicable period
of time within which to respond.
Thereafter, subject to current appellate
procedures, the case should be returned
to the Board.
The Board expresses its gratitude in advance to the RO for
assisting in the requested development.
The purpose of this REMAND is to obtain additional evidence.
No inference should be drawn regarding the final disposition
of this claim. The veteran is hereby informed that failure
to report for a scheduled examination or failure to cooperate
with any requested development may have an adverse effect
upon her claim.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the United States Court of Veterans Appeals for
additional development or other action must be handled in an
expeditious manner. See The Veterans' Benefits Improvements
Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658
(1994); see also 38 U.S.C.A. § 5101 (West Supp. 2000)
(Historical and Statutory Notes). In addition, the VBA
ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the RO
to provide expeditious handling of all cases that have been
remanded by the Board and the Court. See M21-1, Part IV,
8.44-8.45, 38.02-38.03.
M. W. GREENSTREET
Member, Board of Veterans' Appeals